This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Modestas NMN Taylor,


Filed March 30, 2004


Stoneburner, Judge


Hennepin County District Court

File No. 02048248


Mike Hatch, Attorney General, Suite 1400, North Central Life Tower, 445 Minnesota Street, St. Paul, MN 55103; and


Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, Minnesota Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge, and Hudson, Judge.


U N P U B L I S H E D  O P I N I O N




            Appellant Modestas Taylor challenges his conviction of failure to register as a predatory offender, arguing that the predatory-offender registration statute violates the separation-of-powers doctrine.  Appellant also argues that, because he was homeless when he was charged with failing to register as a predatory offender, the registration requirement cannot be applied to him unless he was living where he could receive mail and could provide five days’ notice that he would be living there.  Because, as appellant argues and the state concedes, the record does not reflect these factors, the case must be remanded to the district court for findings regarding the applicability of the registration requirement to appellant.  We conclude that the predatory-offender registration statute does not violate the separation-of-powers doctrine, but we remand for a determination of whether appellant’s living situation met the statutory requirements that he was able to receive mail and give five days’ notice of intent to stay there.  If appellant’s living situation did not meet those requirements, the district court must vacate his conviction.



            In 1996, appellant was charged with felony domestic assault in violation of Minn. Stat. § 609.224, subd. 4 (1996), and fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(c) (1996), based on an altercation with his former girlfriend.  Appellant pleaded guilty to the charge of felony domestic assault, and in exchange, the state dismissed the charge of fourth-degree criminal sexual conduct.  The court committed appellant to the commissioner of corrections for 15 months and executed a previously stayed 30-month sentence on a conviction of a 1995 assault that involved the same former girlfriend.

            When appellant was released from prison, he was presumptively required to register as a predatory offender due to the 1996 charges.  In early 1998, the Bureau of Criminal Apprehension (BCA) received a completed sex-offender registration form from appellant.  In signing the form, appellant acknowledged his duty to register as a sex offender and agreed to “register all changes of address at least 5 days prior to changing residences, including moving to another state.”

            In May 2001 and January 2002, appellant completed an address verification form indicating that he was living at an address in Crystal.  In February 2002, appellant was evicted from that address, but failed to inform the proper authorities of the eviction.  The Crystal Police Department checked appellant’s address in May 2002 and again in June 2002, at which time the apartment manager informed them of appellant’s eviction.  Because neither the BCA nor the Crystal Police Department had received a notice of a change of address from appellant, the state filed a complaint in Hennepin County District Court charging appellant with failure to register as a predatory offender in violation of Minn. Stat. § 243.166 (2000).

            Appellant’s trial counsel moved to dismiss the charge based on several constitutional arguments, including that the predatory-offender registration statute violates the separation-of-powers doctrine.  The district court denied appellant’s motion to dismiss.  Appellant then waived his right to a jury trial and proceeded with a stipulated-facts trial under State v. Lothenbach, 296 N.W.2d 584 (Minn. 1980). 

The district court found him guilty of failing to register as a sex offender, despite the fact that appellant claimed to be homeless at the time he was charged.  Appellant moved for a new trial, claiming that the state failed to prove beyond a reasonable doubt that the charge that triggered appellant’s requirement to register arose out of the same circumstances as his conviction for felony domestic assault.  The district court denied appellant’s motion and imposed a stayed 19-month sentence, which the court executed at appellant’s request.  This appeal followed.



I.          Separation of powers

            The interpretation of a statute is a question of law, which we review de novo.  Boutin v. LaFleur, 591 N.W.2d 711, 714 (Minn. 1999).  “Because Minnesota statutes are presumed constitutional, we exercise our power to declare a statute unconstitutional with extreme caution and only when absolutely necessary.”  Id.  Parties challenging the constitutionality of Minnesota statutes have the “very heavy burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional.”  State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990).

            Appellant argues that Minn. Stat. § 243.166, subd. 1 (2000), requiring sex-offender registration, violates the separation-of-powers doctrine because “[b]y allowing a charge to suffice as a basis for the registration requirement, without a probable cause hearing, the lines between the executive and judicial branches are blurred, thereby violating the separation of powers doctrine.”

            Article III, Section 1 of the Minnesota Constitution provides that:

The powers of government shall be divided into three distinct departments:  legislative, executive and judicial.  No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.


The separation-of-powers doctrine is premised on the belief that “too much power in the hands of one government branch invites corruption and tyranny.”  Wulff v. Tax Court of Appeals, 288 N.W.2d 221, 223 (Minn. 1979).  For example, “[t]he power to define the conduct which constitutes a criminal offense and to fix the punishment for such conduct is vested in the legislature.”  State v. Olson, 325 N.W.2d 13, 17-18 (Minn. 1982).  But “the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in [the prosecutor’s executive branch] discretion.”  State v. Smith, 270 N.W.2d 122, 124 (Minn. 1978).  Generally, the power to engage in plea negotiations also rests with the prosecutor.  State v. Carriere, 290 N.W.2d 618, 620 n. 3 (Minn. 1980).  The judiciary, however, oversees and regulates trials and appellate procedures and imposes sentences within the limits set by the legislature.  State v. Olson, 482 N.W.2d 212, 215 (Minn. 1992); Olson, 325 N.W.2d at 18.  But, “[n]otwithstanding the separation of powers doctrine, there has never been an absolute division of governmental functions in this country, nor was such even intended.”  Irwin v. Surdyks Liquor, 599 N.W.2d 132, 137 (Minn. 1999) (quotation omitted).

            Appellant claims that the sex-offender registration statute gives prosecutors “unfettered” discretion to force offenders to register and impermissibly infringes on the judiciary’s power to impose sentences.  Minn. Stat. § 243.166, subd. 1(a)(1) provides:

Subdivision 1.  Registration required:  (a) A person shall register under this section if:


(1)       the person was charged with or petitioned for a felony violation of or attempt to violate any of the following, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances:


            . . . .


            (iii)     criminal sexual conduct under section 609.342; 609.343; 609.344; 609.345 or 609.3451, subdivision 3 . . .


It is undisputed that appellant pleaded guilty and was convicted of a felony assault that arose out of the same circumstances and was charged in the same complaint as a count of fourth-degree criminal sexual conduct, triggering the registration requirement.

            Contrary to appellant’s argument, prosecutors do not have “unfettered” discretion to force sexual offenders to register.  A prosecutor is allowed to charge a person with a crime only when there is probable cause to believe that the person committed the crime.  See Smith, 270 N.W.2d at 124 (prosecutors file charges “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute”).  Moreover, all complaints must contain a statement of probable cause and must be approved by a judge.  Minn. R. Crim. P. 2.01.  The judge “shall determine whether there is probable cause to believe that an offense has been committed and that the defendant committed it.”  Id.  Furthermore, “a complaint is not effective until a judge reviews it and makes a determination of probable cause.”  State v. Nerz, 572 N.W.2d 346, 349 (Minn. App. 1997), rev’d on other grounds, 587 N.W.2d 23 (Minn. 1998).  Therefore, the discretion of prosecutors is checked by the requirement that a judge also makes a determination of probable cause before an accused is formally charged by complaint.

            In addition, because Minnesota’s sex-offender registration requirement has been held to be a civil regulation, not punishment, its application does not encroach on the judicial function of imposing sentences.  Boutin, 591 N.W.2d at 717 (registration statute does not implicate individual defendant’s fundamental rights because the statute is a civil, regulatory statute); see also Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140 (2003) (holding that Alaska’s sex-offender registration statute is a nonpunitive regulatory scheme); Kaiser v. State, 641 N.W.2d 900, 907 (Minn. 2002) (sex-offender registration is regulatory rather than punitive and therefore is a collateral consequence of a guilty plea). 

            And although not binding on this court, the Alaska Court of Appeals recently rejected a separation-of-powers challenge to that state’s sex-offender registration law, which is substantially similar to Minnesota’s statutory scheme.  See Herreid v. State, 69 P.3d 507 (Alaska Ct. App. 2003).  The Alaska Court of Appeals reasoned that the registration requirement does not infringe on the judiciary’s power to impose individualized sentences because “[a] sentencing court has no power to exempt a defendant from the requirements of the [registration] Act—nor, for that matter, does a sentencing court have the power to impose sex-offender registration and reporting on a defendant whose crime does not qualify . . . .”  Id. at 508 (emphasis in original).  The Alaska court also based its conclusion that the registration act does not violate the separation-of-powers doctrine based on the holding in Smith v. Doe that the Alaska registration requirement is a valid regulatory scheme, not a punitive mechanism.  538 U.S. at 84, 123 S. Ct. at 1140.

            We agree with the reasoning of the Alaska Court of Appeals.  Because the requirement to register as a predatory offender was not part of appellant’s sentence and is imposed under a civil regulatory scheme, the separation-of-powers doctrine is not implicated.

II.        Homelessness and registration

            The supreme court recently addressed the applicability of the sex-offender registration statute to sex offenders who are homeless.  In State v. Iverson, the supreme court held that the registration requirement in Minn. Stat. § 243.166 does not apply to homeless offenders who do not live somewhere where mail can be received and are unable to provide five days’ notice of where they will be staying.  664 N.W.2d 346, 353 (Minn. 2003).  Noting that “not all homeless people suffer from the same degree of instability in their living situation,” the supreme court stated:

[A] bald assertion that one is homeless may not preclude application of the residence requirements of the statute.  A factual inquiry into the offender’s living situation is required to determine whether compliance is possible.  Compliance is required, even for homeless offenders, if they live somewhere where mail can be received and they can provide five days’ notice that they will be going there.  If the location fits both of these criteria, then the offender must register the location.


Id.  Because the record did not “indicate the degree of Iverson’s ‘homelessness,’” the supreme court remanded the case for additional factual findings.  Id. at 354.

            Appellant, like Iverson, claimed he was homeless at the time he was charged with failure to register.  And, as in Iverson, the record here does not indicate “the degree of instability” of his homelessness, specifically whether appellant was living somewhere where he could receive mail and whether he could provide five days’ notice that he was staying there.  The state concedes, and we agree, that a remand to the trial court is necessary for additional factual findings consistent with Iverson.  If appellant’s living situation at the time of the charge did not fit both of the criteria set out in Iverson, his conviction must be vacated.